Medina RENE, Plaintiff-Appellant, v. MGM GRAND HOTEL, INC., Defendant-Appellee, 305 F.3d 1061

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge PREGERSON; Concurrence by Judge GRABER; Concurrence by Judge FISHER; Dissent by Judge HUG. WILLIAM A. FLETCHER, Circuit Judge. This case presents the question of whether an employee who alleges that he was subjected to severe, pervasive, and unwelcome “physical conduct of a sexual nature” in the workplace asserts a viable claim of discrimination based on sex under Title VII of the 1964 Civil Rights Act,- 42 U.S.C. §§ 2000e et seq., even if that employee also alleges that the motivation for that discrimination was his sexual orientation.

We would hold that an employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action. It is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature. We therefore would hold that the plaintiff in this case has stated a cause of action under Title VII.

I Medina Rene, an openly gay man, appeals from the district court’s grant of

summary judgment in favor of his employer MGM Grand Hotel in his Title VII action alleging sexual harassment by his male coworkers and supervisor. The relevant facts are not in dispute. Rene worked for the hotel, located in Las Vegas, Nevada, from December 1993 until his termination in June 1996. He worked as a butler on the 29th floor, where his duties involved responding to the requests of the wealthy, high-profile and famous guests for whom that floor was reserved. All of the other butlers on the floor, as well as their supervisor, were also male.

Rene provided extensive evidence that, over the course of a two-year period, his supervisor and several of his fellow butlers subjected him to a hostile work environment on almost a daily basis. The harassers’ conduct included whistling and blowing kisses at Rene, calling him “sweetheart” and “muñeca” (Spanish for “doll”), telling crude jokes and giving sexually oriented “joke” gifts, and forcing Rene to look at pictures of naked men having sex. On “more times than [Rene said he] could possibly count,” the harassment involved offensive physical conduct of a sexual nature.

Rene gave deposition testimony that he was caressed and hugged and that his coworkers would “touch [his] body like they would to a woman.” On numerous occasions, he said, they grabbed him in the crotch and poked their fingers in his anus through his clothing. When asked what he believed was the motivation behind this harassing behavior, Rene responded that the behavior occurred because he is gay. On June 20, 1996, Rene filed a charge of discrimination with the Nevada Equal Rights Commission.

He alleged that he “was discriminated against because of my sex, male” and'indicated “I believe that my sex, male, was a factor in the adverse treatment I received.” On April 13, 1997, Rene filed a complaint in federal district court, alleging that he had been unlawfully sexually harassed in violation of Title VII and attaching a copy of his Nevada Equal Rights Commission charge. MGM Grand moved for

summary judgment on the grounds that “claims of discrimination based on sexual orientation are not cognizable under Title VII[.]” The district court agreed that Rene had failed to state a cognizable Title VII claim. In granting

summary judgment in favor of MGM Grand, it concluded that “Title VIPs prohibition of ‘sex’ discrimination applies only [to] discrimination on the basis of gender and is not extended to include discrimination based on sexual preference.” Rene timely appealed. II We review a grant of

summary judgment de novo. “[Our] review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56(e).[We] must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Delta Sav ings Bank v. United States, 265 F.3d 1017, 1021 (9th Cir.2001) (internal citations omitted).

Ill Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq., provides that “[i]t shall be an unlawful employment practice ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of ... sex[.]” The Supreme Court made clear, more than 15 years ago, in Mentor Savings Bank v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), that sexual harassment violates Title VII. Rene alleged that he was sexually harassed by his male supervisor and male coworkers under the hostile work environment theory of sexual harassment.

See Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (noting “the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII’s broad rule of workplace equality”). In describing the kinds of sexual harassment that can create a hostile work environment, the Court in Meritor explicitly included “physical conduct of a sexual nature.” Meritor, 477 U.S. at 65, 106 S.Ct. 2399 (quoting EEOC Guidelines, 29 C.F.R. § 1604.11(a) (1985)).

We have applied this holding on numerous occasions, “explain[ing] that a hostile environment exists when an employee can show (1) that he or she was subjected to ... physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991). See also Little v. Windermere Relocation, Inc., 265 F.3d 903, 910 (9th Cir.2001); Fielder v. UAL Corp., 218 F.3d 973, 985 (9th Cir.2000).

It is clear that Rene has alleged physical conduct that was so severe and pervasive as to constitute an objectively abusive working environment. It is equally clear that the conduct was “of a sexual nature.” Rene’s tormentors did not grab his elbow or poke their fingers in his eye. They grabbed his crotch and poked their fingers in his anus. Physical sexual assault has routinely been prohibited as sexual harassment under Title VII. A limited sampling of the reported decisions includes Henderson v. Simmons Foods, Inc., 217 F.3d 612, 616 (8th Cir.2000) (groping and shoving broom handle in crotch); Schmedding v.

Tnemec Co., Inc., 187 F.3d 862, 865 (8th Cir.1999) (patting buttocks); Bailey v. Runyon, 167 F.3d 466, 467 (8th Cir.1999) (grabbing crotch); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067 (10th Cir.1998) (putting mouth on breast); Zimmerman v. Cook County Sheriffs Dep’t, 96 F.3d 1017, 1018 (7th Cir.1996) (grabbing breast and rubbing buttocks); Quick v. Donaldson Co., 90 F.3d 1372, 1374 (8th Cir.1996) (grabbing and squeezing testicles and flicking groin); Varner v. Nat’l Super Markets, Inc., 94 F.3d 1209, 1211 (8th Cir.1996) (grabbing breasts); Wrightson v.

Pizza Hut of America, Inc., 99 F.3d 138, 140 (4th Cir.1996) (rubbing genitals against buttocks); Wattman v. Int’l Paper Co., 875 F.2d 468, 472 (5th Cir.1989) (grabbing breasts and directing high pressure hose at crotch); Hall v. Gus Construction Co., Inc., 842 F.2d 1010, 1012 (8th Cir.1988) (rubbing thighs and grabbing breasts); Bohen v. City of East Chicago, 799 F.2d 1180, 1182 (7th Cir.1986) (pressing hands against crotch); Jones v. Wesco Invs., 846 F.2d 1154, 1155 (8th Cir.1986) (touching breasts, pinching and patting buttocks).

Such harassment — grabbing, poking, rubbing or mouthing areas of the body linked to sexuality — is inescapably “because of ... sex.” See Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir.1997), vacated and remanded, 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998) (“[W]e have difficulty imagining when harassment of this kind would not be, in some measure, ‘because of the harassee’s sex — when one’s genitals are grabbed, ... it would seem to us impossible to delink the harassment from the gender of the individual harassed.”).

The most extreme form of offensive physical, sexual conduct — rape— clearly violates Title VII. See Little v. Windermere Relocation, 265 F.3d at 912 (“Rape is unquestionably among the most severe forms of sexual harassment. ... Being raped is, at minimum,

an act of discrimination based on sex.”); Brock v. United States, 64 F.3d 1421, 1423 (9th Cir.1995) (“Just as every murder is also a battery, every rape committed in the employment setting is also discrimination based on the employee’s sex.”). In granting MGM Grand’s motion for

summary judgment, the district court did not deny that the sexual assaults alleged by Rene were so objectively offensive that they created a hostile working environment. Rather, it appears to have held that Rene’s otherwise viable cause of action was defeated because he believed he was targeted because he is gay. This is not the law. We have surveyed the many cases finding a violation of Title VII based on the offensive touching of the genitalia, buttocks, or breasts of women. In none of those cases has a court denied relief because the victim was, or might have been, a lesbian.

The sexual orientation of the victim was simply irrelevant. If sexual orientation is irrelevant for a female victim, we see no reason why it is not also irrelevant for a male victim. The premise of a sexual touching hostile work environment claim is that the conditions of the work environment have been made hostile “because of ... sex.” See Ellison, 924 F.2d at 876.

The physical attacks to which Rene was subjected, which targeted body parts clearly linked to his sexuality, were “because of ... sex.” Whatever else those attacks may, or may not, have been “because of’ has no legal consequence. “[S]o long as the environment itself is hostile to the plaintiff because of [his] sex, why the harassment was perpetrated (sexual interest? misogyny? personal vendetta? misguided humor? boredom?) is beside the point.” Doe, 119 F.3d at 578. Our opinion today is guided by the principles established by the Supreme Court in Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). As recounted by the Court, the Title VII plaintiff in Oncale had been “forcibly subjected to sex-related, humiliating actions” and had been “physically assaulted ... in a sexual manner” by other males at his place of employment. Oncale, 523 U.S. at 77, 118 S.Ct. 998. We know from the circuit court’s opinion that this physical assault included, among other things, “the use of force by [one co-worker] to push a bar of soap into Oncale’s anus while [another co-worker] restrained Oncale as he was showering[.]” Oncale v.

Sundowner Offshore Servs., Inc., 83 F.3d 118, 118-19 (5th Cir.1996). This behavior occurred, the Court noted, in an all-male workplace. Oncale was a male plaintiff who worked on an all-male off-shore oil drilling rig “as a roustabout on an eight -man crew.” See Oncale, 523 U.S. at 77, 118 S.Ct. 998 (emphasis added). Oncale’s employer, Sun-downer, never employed women on any of its drilling rigs. See Joint App. at 76. Based on these facts, the Supreme Court reversed the judgment of the Court of Appeals for the Fifth Circuit, which had affirmed a grant of

summary judgment in favor of the defendant-employer on the grounds that "same-sex harassment is not cognizable under Title VII." Oncale, 83 F.3d at 118. We take two lessons from the Court's decision in Oncale. First, Title VII forbids severe or pervasive same-sex offensive sexual touching. The Court made clear that a plaintiff's action for sexual harassment under Title VII cannot be defeated by a showing that the perpetrator and the victim of an alleged sexual assault are of the same gender.

The Court wrote, We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Oncale, 523 U.S. at 79, 118 S.Ct. 998; see also id. at 78, 118 S.Ct. 998 ("Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." (citation and internal quotation omitted)). Thus, Oncale's cause of action could not be defeated based on the fact that he was tormented by other men. Second, offensive sexual touching is actionable discrimination even in a same-sex workforce.

The Court in Oncale made clear that "discrimination" is a necessary predicate to every Title VII claim. That is, a defendant's conduct must not merely be "because of sex"; it must be "`discriminat[ionJ ... because of sex.'" Oncale, 523 U.S. at 81, 118 S.Ct. 998 (emphasis in original). The Court in Oncale held that "discrimina[tion] ... because of ... sex" can occur entirely among men, where some men are subjected to offensive sexual touching and some men are not. There were no women on On-cale's drilling rig; indeed, there were no women on any of his employer's oil rigs.

Discrimination is the use of some criterion as a basis for a difference in treatment. In the context of our civil rights laws, including Title VII, discrimination is the use of a forbidden criterion as a basis for a disadvantageous difference in treatment.

"Sex" is the forbidden criterion under Title VII, and discrimination is any disadvantageous difference in treatment "because of sex." The Oncale Court's holding that offensive sexual touching in a same-sex workforce is actionable discrimination under Title VII necessarily means that discrimination can take place between members of the same sex, not merely between members of the opposite sex. Thus, On-cale did not need to show that he was treated worse than members of the opposite sex. It was enough to show that he suffered discrimination in comparison to other men.

Viewing the facts, as we must, in the light most favorable to the nonmoving party, we are presented with the tale of a man who was repeatedly grabbed in the crotch and poked in the anus, and who was singled out from his other male co-workers for this treatment. It is clear that the offensive conduct was sexual. It is also clear that the offensive conduct was discriminatory. That is, Rene has alleged that he was treated differently-and disadvantageously-based on sex.

This is precisely what Title VII forbids: "discrimi-nat[ion] ... because of ... sex." In sum, what we have in this case is a fairly straightforward sexual harassment claim. Title VII prohibits offensive “physical conduct of a sexual nature” when that conduct is sufficiently severe or pervasive. Meritor, 477 U.S. at 65, 106 S.Ct. 2399. It prohibits such conduct without regard to whether the perpetrator and the victim are of the same or different genders. See Oncale, 523 U.S. at 79, 118 S.Ct. 998. And it prohibits such conduct without regard to the sexual orientation — real or perceived— of the victim.

There will be close cases on the question of what constitutes physical conduct of a sexual nature, for there are some physical assaults that are intended to inflict physical injury, but are not intended to have (and are not interpreted as having) sexual meaning. That is, there will be some cases in which a physical assault, even though directed at a sexually identifiable part of the body, does not give rise to a viable Title VII claim. But this is not such a case. Like the plaintiff in Oncale, Rene has alleged a physical assault of a sexual nature that is sufficient to survive a defense motion for

summary judgment. This opinion is joined by Judges Trott, Thomas, Graber, and Fisher. Judge Pre-gerson, in a separate opinion joined by Judges Trott and Berzon, reaches the same result but under a different rationale. Taken together, these two opinions are joined by a majority of the en banc panel. Accordingly, the district court’s grant of

summary judgment to MGM Grand is REVERSED, and the case is REMANDED for further proceedings. . Rene also alleged retaliatory discharge. The district court’s grant of

summary judgment on that claim was not appealed and is not before us.